Ethics Opinions

Opinion No. 74-7

Summary: A lawyer may be identified as such in promotional materials relating to his availability as a public lecturer, where disclosure of his profession is reasonably pertinent for a purpose other than the attraction of potential clients.

Facts: A lawyer engaged in private practice also is a well-known author whose services as a public lecturer are in demand. He proposes to enter into an arrangement with a commercial agency to handle his speaking engagements, and inquires as to whether he properly may authorize the agency to identify him as a lawyer in the promotional materials which it will publish. He contemplates that the agency will be authorized to identify him as a lawyer, but not to make any other reference to his practice of law.

Discussion: Canon 27 of the former ABA Canons of Professional Ethics ruled it unprofessional conduct "to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations." This canon also characterized all "indirect advertisements for professional employment" such as publicity "in connection with causes in which the lawyer has been or is engaged" as "reprehensible," but it stated that "the customary use of simple professional cards is not improper."
Informal Opinion No. 920 of the ABA Standing Committee on Professional Ethics, February 24, 1966, construed Canon 27 to permit an attorney engaged in the general practice of law to publish works of fiction under his own name. It went on to say:
However, if, in the advertising incident to publication, there is necessary any biographical material referring to you as the author, while the Committee sees no impropriety in your being referred to as a lawyer, such reference should not contain any statements which would hold you out as being specially able in any field of the law, whether 'general practice' or any other field. Such designation would come under the prohibitions of Canon 27, condemning advertising, direct or indirect.
The Code of Professional Responsibility (SJC Rule 3:22) specifically provides in Disciplinary Rule DR 2-101(B) that "A lawyer shall not publicize himself ... as a lawyer through ... means of commercial publicity, nor shall he authorize or permit others to do so in his behalf, except as permitted under DR 2-103 [cooperation in a dignified manner with certain legal services activities]. This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name: ..."
"(2) In public notices when the name and profession of a lawyer ... are reasonably pertinent for a purpose other than the attraction of potential clients."
The lawyer has not advised us as to the subject matter of his lectures. We believe DR 2-101(B)(2) would permit identification of him as a lawyer to be included in public notices of his lectures, if they are upon legal or quasi-legal subjects, whether fact or fiction, since his profession as a lawyer would be "reasonably pertinent" for the purpose of securing and publicizing speaking engagements on such subjects.
This conclusion is buttressed by DR 2-104(4), which provides that "... a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice."
However, if his lectures are on completely non-legal subjects, so that his profession as a lawyer is not "reasonably pertinent" to his lecture engagements, the strict prohibitions of DR 2-101(B) would apply, to proscribe public notices identifying him as a lawyer. DR 2-102(E) is to the same effect. It provides that "A lawyer who is engaged both in the practice of law and another profession or business shall not ... identify himself as a lawyer in any publication in connection with his other profession or business.

Permission to publish granted by the Board of Delegates, 1974. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.